From: dickbash@combatarms.com (Dickbash) Subject: Blacks and guns in the US Date: Thu, 27 Apr 1995 22:30:32 GMT To: firearms-alert@shell.portal.com The following is a paper written last month. Comments via e-mail are invited. Regards, Richard Bash +.........................................................+ . dickbash@combatarms.com Combat Arms BBS . . Voice: 1-503-223-3160 P.O. Box 913 . . BBS: 1-503-221-1777 Portland, OR 97207 . +.........................................................+ THE APPLICATION OF THE LEGISLATIVE, JUDICIAL AND CRIMINAL JUSTICE SYSTEMS AGAINST BLACK OWNERSHIP OF FIREARMS FROM 1751-1865 AND ITS PARALLELS TODAY: ARE WE MISSING THE MESSAGE? by Richard Bash dickbash@combatarms.com Submitted in partial completion of the requirements for AJ 511 Historical Perspective of Criminal Justice Dr. Charles Tracy March 2, 1995 INTRODUCTION There is evidence, some say compelling evidence, which shows that the foundational basis for today's gun control laws is racism. "Throughout much of American history, gun control was openly stated as a method for keeping blacks and Hispanics 'in their place,' and to quiet the racial fears of whites."[1] The individual states of the United States have experienced racially motivated gun control laws since 1751, when the old French Black Code required colonists in Louisiana colonists to stop any blacks, and if necessary, assault "any black carrying any potential weapon, such as a cane."[2] As late as 1858 the Louisiana case of Laparouse v. Rice, 13 La.Ann. 567, spoke to this revised version of the Black Code (officially entitled the Act of 1806) when the high court of Louisiana held the statute: ". . .justifies the firing on runaway slaves who are armed, or who, when pursued, refuse to surrender, avoiding, however, if possible, the killing of them. . . . If, however, a slave be killed, the homicide is a consequence of the permission to fire on him, and the party killing him cannot be held liable therefor.[3] To pursue the topic of racially based gun laws, this research will center on instances of racially biased gun laws and legal cases about such laws in the Old South prior to the Civil War. The research will illustrate the attitudes of the legislative and judicial bodies, and also show the compliance of the criminal justice agencies, METHODOLOGY This project necessitated that I search out and examine legal cases and old statutes at the Lewis & Clark Law Library. I had a couple of references from the Clayton Cramer study and the research proceeded from there. Also located were a couple of important papers on the subject. Limitations include lack of access to WestLaw, insufficient time to explore and explain this topic in depth, and the qualitative selection of the numerous findings in the area. Evidence will be presented, arguments offered as to why this evidence has merit and should be considered, and the reader permitted to draw their own conclusions. I suggest that the reader will be persuaded to agree with my opening sentence and see the relationship between historical events and such modern moves as the one to abolish "Negro Saturday night specials," a old term (now abbreviated to "Saturday night specials") used to describe inexpensive handguns such as a Jennings and Raven that are within the price range affordable by low income citizens. STYLE My experience has shown that the APA style of referencing is faulty, not amenable to WordPerfect versions 4.0 through the current 6.x series, and better suited to a typewriter era. Moreover, the courts of the states and federal government do not follow this awkward style. Hence, I will follow the referencing style used by the courts in this document. The means the reference will be noted by a superscript and details on the reference will appear in the endnotes section entitled "Sources of Information." You are invited to examine the endnotes during the reading; much ancillary material is contained therein. BIASES As a life member of the National Rifle Association, certified firearms instructor, a qualified gunsmith, and former owner of a gun shop in California and Oregon, I have long been concerned about the rights of citizens to legally purchase and possess firearms. As a graduate student I have been trained to acknowledge potential biases. I do not consciously believe that my pro-gun stance has colored my research into this problem nor has it limited my research. DISCUSSION CIVIL WAR PRECURSORS - SLAVES AND FIREARMS The presidency of John Quincy Adams from Massachusetts extended from 1824 to 1828. It was a presidency embroiled in controversy from the beginning, with competitor for that august office, Tennessean Andrew Jackson, accusing Adams and his Secretary of State from South Carolina, John C. Calhoun, of having formed a "corrupt bargain" with the House of Representatives. Jackson had won the most electoral college votes, but had failed to receive a majority. A deal was struck whereby Adams was elected President and chose swing-vote holder Clay as his Secretary of State. This animosity set the stage for further sectionalization of the nation. Add to this unrest the Tariff of 1828, which levied high tariffs on imports of goods common to farming districts in the North and West. Calhoun railed against both Adams and the Tariff of 1828, arguing that what was good for the North and West was not good for the South and, further, that a state could nullify a law passed by Congress! Regionalism prevailed and in 1828 Jackson was elected as President and chose Calhoun as his Vice- President.[4] Amid this clash of provincialism came two important slave rebellions. The first, in 1822, was led by Denmark Vessey in Charleston, South Carolina. The second, and more famous of the two, occurred in 1831 in Virginia. There slave Nat Turner led an attack against whites. In the end about 160 whites and blacks were killed before Turner was captured and likewise killed.[5] Slaves had been permitted possession of firearms on an on- off basis. They were used as a necessity at times in a frontier society and on Southern plantations. But legislation prohibiting either slaves or free blacks from possessing firearms, except under very restrictively controlled conditions, continued to be passed.[6] One example can be found in North Carolina, where in 1840 the Assembly passed Chapter 30, "An act to prevent free persons of color from carrying firearms." That law specifically stated: "Be it enacted, etc. That if any free negro, mulatto, or free person of color, shall wear or carry about his or her person, or keep in his or her house, any shot gun, musket, rifle, sword, dagger or bowie-knife, unless he or she shall have obtained a license therefor from the Court of Pleas and Quarter sessions of his or her county, within one year preceding the wearing, keeping or carrying thereof, he or she shall be guilty of a misdemeanor, and may be indicted therefor." The North Carolina Supreme Court ruled on the constitutionality of that law during their December 1844 term.[7] In that case, on June 1, 1843 Newsom, a free person of color, carried on his person an unlicensed shotgun, "to the evil example of all others in like manner offending. . ." Upon a guilty finding by the trial court, it was appealed. The North Carolina Supreme Court, Justice Nash presiding, decided that the 1840 act was not in violation of the Second Amendment to the Constitution of the United States nor did the Second and other Amendments apply to the States; it would be nearly 100 years before the incorporation clause of the Fourteenth Amendment was used to bind other Amendments to the States and the Second Amendment itself has never been so incorporated. Nor was the 1840 act in violation of the 17th article in the North Carolina Constitution (comparable to the Second Amendment).[8] Moreover, the Court stated, ". . . that the free people of color cannot be considered as citizens in the largest sense of the term . . ." We will see this legal argument about citizenship taken to its illogical extreme in the Dred Scott decision. The North Carolina Supreme Court upheld the guilty verdict, saying, "Upon full consideration of all the objections urged by the prisoner's counsel, we do not find such clear repugnancy between the [North Carolina] Constitution and the act of 1840 as to warrant us in declaring that act unconstitutional and void. . . . This decision must be certified to the Superior Court of Cumberland County, with directions to proceed to judgment and sentence thereon agreeably to this decision and the laws of the State." The Georgia Supreme Court seems to have read this North Carolina ruling. During the January 1848 term, in the case of Cooper and Worsham v. Savannah[9], the court referred to a joint resolution of the Legislature of Georgia in 1842[10] and declared: "Free persons of color have never been recognized here as citizens; they are not entitled to bear arms, vote for members of the legislation, or to hold any civil office. They have always been considered as in a state of pupilage, and have been regarded as our wards, and for that very reason we should be extremely careful to guard and protect all the rights secured to them by our municipal regulations. They have no political rights, but they have personal rights, one of which is personal liberty." [Italics in original] This thinking matches that of the Louisiana Supreme Court's 1836 ruling that, "The power of the master is absolute, and the slave cannot resist, nor be heard if he complain of the abuse of this power."[11] Also note Mississippi's position in an 1845 case: "A negro is prima facie a slave."[12] The coup d'grace was delivered by none other than the United States Supreme Court when, in December 1856, the Court, with Chief Justice Taney delivering the majority decision, held that, regarding blacks being considered as citizens: "For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went [italics mine]. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State. "It is impossible, it would seem, to believe that the great men of the slaveholding States, who took so large a share in framing the Constitution of the United States, and exercised so much influence in procuring its adoption, could have been so forgetful or regardless of their own safety and the safety of those who trusted and confided in them."[13] The fear of slave rebellion and the imagined horror of armed slaves was seen throughout the Confederacy. After the Turner Rebellion in Virginia, the Virginia legislature promptly prohibited free blacks from possessing any firearms and rescinded all laws permitting it. Tennessee went to the extreme of changing its constitution regarding the right to bear arms. It changed the wording from "That the freemen of this State have a right to keep and bear arms . . ." to "That the free white men of this State have a right to keep and bear arms ..."[14] Yet there are confounding cases. Consider Alabama in 1846, when the Alabama Supreme Court fined a master $100 when that master called upon a slave to aid him in repelling an attack. The slave used a firearm to complete the master's orders and was later arrested for that usage and fined. On appeal the Court ruled that the slave dutifully obeyed his master and rendered the master at fault.[15] Further, in contrast to our usual familiarity with different kinds of murder, the Alabama Supreme Court also ruled in 1862 that "murder committed by a slave is not divided into degrees, and the jury are not required to specify the degree in their verdict."[16] Our age heralds Lincoln's Emancipation Proclamation, written in September 1862 but issued January 1, 1863, as law. But it was not law; it was a presidential proclamation. It only freed slaves in those states which were still in rebellion. Naturally, these states did not recognize President Lincoln's authority. After all, their President of choice was Jefferson Davis.[17] Thus, the Emancipation Proclamation had no immediate effect upon the slaves of the Confederacy. Alabama's Supreme Court ruled on this point twice. In 1867, two years after the war was over, they held that, "Slaves in this state neither in law nor in fact became free until 1865 when they were emancipated by the action of the United States authorities."[18] A year later the same court held, "The proclamation of the president, declaring the manumission of all persons held as slaves within the seceded states, was a war measure, and had no operative effect until carried into execution by force of arms."[19] This attitude was also voiced in 1869 when Florida's highest court stated, "The emancipation proclamation of the president of the United States, issued January 1, 1863, was a military measure, and became operative only when the federal government was enabled to enforce it by military power."[20] What is important to understand in the context of this research is that blacks of the South, be they free or slaves, not only did not have general firearms rights but the attitudes and fears which promulgated those restrictions were supported by the courts and carried forward into the Reconstruction period and beyond. THE MODERN PERIOD The post-war period resulted in race neutral wording of the firearms laws. Yet the number of restrictive gun control laws went on unabated. I suggest that many, perhaps most, such prohibitions have a distinctive racial overtone during the Reconstruction phase. Looking forward to the 1960s it was permissible in California to have a loaded handgun in a vehicle, provided it was in plain view. That was in force until the Black Panthers in Oakland adopted that custom. The California Penal was promptly changed to prohibit such conduct.[21] Today we see the "assault weapon" under attack. While the vast majority of owners of such firearms are white males, and while the vast majority of crimes committed with such weapons are committed by white males, it is the image of the black drug dealer with an Uzi which seems to focus the thinking of media personnel and legislators alike. Even assassins and terrorists in this nation are white. Rare is the black terrorist; rarer still the black assassin or hired killer. Consider the concealed handgun permit process in California. There the permit is issued by the police chief or sheriff, much as in Oregon. But research reveals that nearly all holders of such permits in California are white males.[22] Law school and scholarly journals are not devoid of articles addressing the racial thrust of gun control measures. A growing number of articles speak to the Second Amendment as a way of preventing Congress from disarming free men.[23] Some arguments stress the Militia Clause of the second Amendment, suggesting that the Amendment's true purpose was to provide for a state militia. This is known as the "collective rights theory."[24] Others persuasively rebut saying that the Amendment speaks to the armed citizen, armed for self-defense from whomever is the aggressor.[25] This view is promoted as the "individual rights theory." CONCLUSIONS Today gun prohibitionists and restrictionists would never openly rely upon race as a justification. But the message on the six o'clock news is not very different from the message in Virginia in the 1830s: blacks are untrustworthy, too violent, too anti-social to be allowed access to firearms. The argument simply makes no sense whatsoever. It was based upon hysteria then and such arguments are equally hysterical today. The real violence among blacks is poor-black-on-poor-black violence in the disasters we call the inner cities. Left leaning researchers might argue that the evidence suggests class more than race as the bias. I disagree. In the United States, in the white culture in which I reside and travel, in the fears privately expressed by otherwise knowledgeable graduate students and learned professors, the target of the hysteria is the blacks. These fears are illogical but real. They take on a life of their own. The advocates of gun restrictions seem to this writer to be aligned with the Democratic Party and other such groups which promote burdensome control solutions to one's private life. There is astounding hypocrisy involved (viz., anti-gun advocate Dianne Feinstein carries a weapon, as does Joe McNamara). Liberals who argue for constitutional rights for criminals, regardless of the consequences, are wont to support the Second Amendment as yet another individual right in the Bill of Rights. Conservatives, on the other hand, favor a literal interpretation of the Second Amendment but often favor the application of cost-benefit analysis to other constitutional constructions.[26] It seems to me that the collective rights argument is rather diminished in view of the U.S. Government's absorption of the National Guard into the U.S. Army as well as Air Force.[27] Perhaps noted firearms instructor and writer Jeff Cooper summed up the case for individual ownership by saying, "Owning a handgun doesn't mean you're armed any more than owning a guitar means you're a musician." The point of all of this discussion is that America has a sordid history of racially restrictive firearms legislation. Today the fears of crime seem to be promoting more unduly restrictive measures. Blacks have been the targets of violence far more often than the purveyors of violence, even in the 1990s. I asked in the headers if we are missing the message, that message being that the fundamental reason for the war on crime and restrictions on firearms has been a gross exaggeration of black participation in drug and gun related violence. That such black violence as exists is found in run down large cities, is often related to some form of substance ingestion, is prevalent among poor blacks as opposed to middle and upper class blacks, seems lost in the cacophony. The message is that gun restrictions of the 1990s are not very different from those the 1790s. Only the technology has changed. The fears remain the same. SOURCES OF INFORMATION 1. "The Racist Roots of Gun Control" by Clayton M. Cramer, 1993, p. 1. Originally from "Free Blacks in a Slave Society: New Orleans, 1718-1812" by Thomas N. Ingersoll, "William and Mary Quarterly," 48:2 [April, 1991], 178-79. The Clayton article is available for downloading as RACEROOT.ZIP through the Combat Arms Bulletin Board System (BBS) in Portland, OR at 1-503-221-1777. Scholars are encouraged to note that this facility has a wide selection of related gun law topics. For a complete listing, please download the file ALLFILES.ZIP and examine the list of files available under the heading "Second Amendment Research." 2. Ibid, p. 1. If a black failed to stop or refused to stop on demand, and was on horseback, the colonist was authorized to "shoot to kill." 3. Act of 1806, Louisiana, 32. In a seeming twist of irony, the court in Laparouse v. Rice also stated, "A person has no right to shoot a slave who is found stealing chickens and is running away, though ordered to stop." 4. "The American Way" by Nancy W. Bauer, Ph.D., pp 309-314, Holt, Rineholt and Winston, 1979, New York. 5. Ibid., p. 317. 6. Clayton, op. cit, p. 1, citing Daniel H. Usner, Jr.'s work, "Indians, Settlers, & Slaves in a Frontier Exchange Economy: The Lower Mississippi Valley Before 1783," (Chapel Hill, N.C.: University of North Carolina Press, 1992), 139, 165, 187. 7. State v. Elijah Newsom, 27 NC 250, 1844. 8. The 17th article of the North Carolina Constitution stated: "That the people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power." 9. Samuel Cooper and Hamilton Worsham, by their next friend, etc. vs. The Mayor and Aldermen of the City of Savannah, 4 Ga. 68. 10. "Resolved, that free negroes are not citizens of the U.S., and that Georgia will never recognize such citizenship." Pam. Acts, 1842, p. 182. 11. Poydras v. Mourain, 9 La. 492. 12. Randal v. State, 4 Smedes & M. (12 Miss.) 349. 13. Dred Scott, plaintiff in error, v. John F. A. Sandford, 60 U.S. 393; 15 L. Ed. 691. Taney seems to have been incorrectly vilified for stating the Court's majority opinion. It seems the view of the time was that slaves were property and merely moving to another location did nothing to the property. As property they lacked citizenship as such. Taney wrote after the historic decision and justified his legal reasoning. Part of it was based upon the Constitution's declaration (Article I - Section 2) that: "Representative and direct taxes shall be apportioned among the several states which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons." To Taney this explicitly illustrated that slaves were neither free people nor citizens. It is ironic that Dred Scott never lived long enough to see the start of the Civil and that Justice Taney did not see it end on April 9, 1865. Nor did Taney survive long enough to witness the assassination of President Lincoln five days after Lee surrendered at Appomattox. 14. Clayton, op. cit., p. 2. 15. Pinkston v. Greene, 9 Ala. 19. The court held, "the threatened danger was so imminent as to render a resort to any means justifiable, or at least excusable to prevent irreparable injury." 16. Crockett v. State, 38 Ala. 387. This was a case of murder of a slave by a slave. 17. Bauer, op. cit., p. 432. 18. Leslie v. Langham's Executors, 40 Ala. 524. 19. Weaver v. Lapsley, 42 Ala. 601. 20. Slaback v. Cushman, 12 Fla. 472. 21. I have not been successful in finding a cite for this but know it to be true. In retrospect, perhaps I should have examined a copy of the California Penal Code of that period to retrieve the date of the change. Hence, the reader is cautioned to consider this anecdotal evidence. 22. "Smoking Gun: The Case for Concealed Weapon Permit Reform" by the California Assembly Office of Research, Sacramento, 1986. 23. "The Second Amendment: Toward an Afro-Americanist Reconsideration" by Robert J. Cottrol and Raymond T. Diamond, 80 Georgetown Law Journal 309, 1991. Cottrol cited "The Bill of Rights as a Constitution" by Akhil Amar, 100 Yale Law Journal 1131. 24. "The Second Amendment and the Right to Bear Arms: An Exchange" by Lawrence Delbert Cress and Robert E. Stalhope, 71 Journal of American History 587, 1984. 25. "The Right of the People to Keep and Bear Arms: The Common Law Tradition" by Joyce Lee Malcolm, 10 Hastings Constitutional Law Quarterly 285, 1983. Also see "The Ideological Origins of the Second Amendment" by Robert E. Stalhope, 69 American Journal of History 599, 1982. This latter article asserts that the armed citizen and the militia existed as distinct but interrelated elements within the minds of the Founding Fathers. 26. Cottrol, op. cit., p. 6 of a hard copy computer printout. 27. For a lengthy U.S. Supreme Court case discussing this very point, please see Perpich v. Department of Defence, 110 S.Ct. 2418, 1990. This case came to the fore because Governor Perpich of Wisconsin refused to permit the Wisconsin National Guard to participate in actions in Honduras. He lost the case because of Congress' authority over the National Guard. -= END OF FILE =-